November 2008 Archives

The Spreading of Disorder

A Netherlands study to be published in Science provides further empirical support for the "Broken Windows" hypothesis that policing seemingly petty offenses makes a big difference. The authors are Kees Keizer, Siegwart Lindenberg, & Linda Steg of the U. of Groningen. Abstract here. Ronald Bailey, science editor of Reason magazine, comments here.

It's Aliiiiiiiiiive

You've made it to the new blog, and it's alive!

Comments are turned off temporarily for technical reasons.

Under Construction

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We plan to move the Crime and Consequences blog to a new host over the Thanksgiving holiday period. During the transition, there may be times when some users are seeing the old blog and some are seeing the new one. In addition, we are upgrading to a new version of the blog software, so there may be a few glitches in that transition process.

Comments will be turned off on the new blog initially. We will turn them on when we iron out a few lingering technical issues.

CJLF's main web site will be down for maintenance for a few hours on Monday. The expected down time is from 10:30 a.m. to 1:00 p.m., Pacific Time.

Blog Scan

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Two New Cases Granted Today: For those of us who wanted something other than our Thanksgiving turkey to ponder over the holiday the U.S. Supreme Court has delivered. Today, the Court granted review in two new cases. One case involves immigration law, and the other tests whether a former service member whose military court conviction had become final may challenge the verdict within the military appeals court system. Lyle Denniston at SCOTUSblog has this post on the grants. A link to the Orders List can be found here. In the second case, United States v. Denedo, the Justice Department has asked the Court to review the Court of Appeals for the Armed Forces authority to force a Navy appeals court to review Denedo's case. According to Denniston's report, the Justice Department is arguing that the Court of Appeals for the Armed Forces has overstepped the bounds set by Congress.

Property Rights, the Constitution, and Obama's Judicial Appointments
: At Volokh Conspiracy, Ilya Somin has a post that asks whether President-elect Obama actually meant it when he wrote in The Audacity of Hope that "Our Constitution places the ownership of private property at the very heart of our system of liberty.... " Somin comments that if Obama actually believes this, then "property rights should get more protection than the distinctly second-class status they have been relegated to under the Supreme Court's current jurisprudence." This should mean that Obama will appoint judges who believe that the protection of property rights is at the heart of our Constitution. However, Somin is not convinced this will be the case. Somin looks at Obama's statement that he wants to appoint Justices similar to Stephen Breyer and David Souter - and the fact that they have consistently voted against property rights in almost every major case for the last 20 years - and concludes that Obama probably does not value property rights enough to guide his choices for the U.S. Supreme Court. Somin remains optimistic, however, that Obama could have meant what he wrote in his book, and could embrace pro-property rights policies and could appoint pro-property liberals to the federal judiciary.

As reported in today's News Scan, the California Supreme Court has handed down its decision in People v. Brendlin. Yesterday's decision adopted a rule "that discovery of an outstanding arrest warrant prior to a search incident to arrest constitutes an intervening circumstance that may - and, in the absence of purposeful or flagrant police misconduct, will - attenuate the taint of the antecedent unlawful traffic stop." In other words, the drug paraphernalia found on Brendlin should be admitted as evidence even though the warrant for his arrest would not have been discovered "[b]ut for the unlawful vehicle stop." The lesson: if you have violated parole, and have a warrant out for your arrest, don't drive around in a car with containers that are used to make methamphetamine.
This was not the first time the California Supreme Court had heard Brendlin's case. In 2006, the court held that a passenger in a vehicle subject to a traffic stop is not seized within the meaning of the Fourth Amendment unless the passenger can show he was the subject of the officer's investigation and did not feel free to leave. The U.S. Supreme Court rejected this holding last April.

News Scan

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Court Allows Evidence from Unlawful Traffic Stop: The California Supreme Court has unanimously reinstated the drug conviction of a man found guilty based upon evidence uncovered after the car he was riding in was illegally stopped. The Court's decision in People v. Brendlin held that while the initial stop - based on suspicion of a faulty registration - was unlawful, the search was proper because there was an outstanding arrest warrant for the passenger. A story by AP writer Sudhin Thanawala cites Associate Justice Marvin Baxter's opinion which held that while the police would not have learned of the warrant if it hadn't been for the illegal stop, the officer has acted "in the absence of purposeful or flagrant police misconduct" in pulling the car over. People v. Brendlin involves the same Bruce Brendlin who appeared before the U.S. Supreme Court in April 2007. In its June 2007 decision, the Supreme Court held that passengers, like drivers, are seized for Fourth Amendment purposes and may challenge the stop.

Daughters Safely Recovered After Mother Found Slain:
Tim Martin, of the Associated Press, reported yesterday that the three daughters of Erica Olguin, 32, were recovered after their mother was found slain in her Saginaw, Michigan home. Daughters Victoria, 3; Lilliana, 5; and Elena, 9, were found about 25 miles from Saginaw after a motorist alerted police to a car where the girls were found with their father. Their father, Jose Olguin, is in custody, but has not yet been charged with any crime.

'Natural Born' Baloney: James Taranto's daily WSJ newsletter for today takes on, among other things, the nonsense that Barack Obama is not a "natural born Citizen" (see US Const., art. II § 1, 5th para.) and the heckling incident at the US AG's Federalist Society speech.

Silicon Valley Drunks

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An important aspect of "broken windows" policing is the enforcement of public order laws, such as the prohibition of public drunkenness. It appears that San Jose is about to take a step backward. Sean Webby has this story in the S.J. Mercury-News. "City officials agreed Tuesday to explore ways to cut back the San Jose Police Department's aggressive use of the public-drunkenness law, following a public hearing at which hundreds of residents turned out to protest city policy."

Why, one might ask. Well, it seems we have "activists" at work, playing that good old reliable race card. "During the hearing, about 50 residents spoke out against the city's aggressive policy, which led to 4,661 arrests by the department last year — 57 percent of them Hispanics. There was little community support expressed for the current policy."

I doubt that a lack of turnout at the meeting is a valid indicator of little support for the policy. More likely, the opponents are organizing opposition and supporters have not made an organizing effort.

[Police Chief] Davis said in his remarks that the city's arrest numbers are higher because San Jose does not have a sobering station, as other big cities do, leaving the police little choice but to arrest people who are publicly drunk. The chief's comments didn't note that some other cities release suspects without charges, while San Jose police bring charges against virtually everyone arrested for being drunk.

Other cities such as San Francisco and Los Angeles? Yeah, those are great examples to emulate.

Gallup's annual survey of the public's perception of the ethics of various professions is available here. The medical folks continue to top the chart, while financial professions have taken an unsurprising hit.

Relevant to criminal law, the police do well and far better than lawyers. A whopping 56% of the public rate the police high on ethics compared to only 9% low, just a shade behind the clergy. Lawyers come in on the top of the bottom tier with 18/37. That is low, but higher than congressmen, car salesmen, telemarketers, or the last-place lobbyists.

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CA Court Voids Execution Procedures: As posted by Kent Scheidegger, California's first district court of appeals ruled Friday, that the state's lethal injection procedures are invalid because the were not adopted through an administrative process which requires public comment and review by an independent state agency. A Los Angeles Times story by Carol Williams reports that a three judge panel of the San Francisco court unanimously affirmed a year-old ruling by Marin County Judge Lynne O'Malley Taylor. The challenge was brought by Michael Morales and Mitchell Sims. Morales was sentenced to die for attacking 17-year-old Terry Lynn Winchell with a hammer, strangling her with a belt and raping her before fatally stabbing her four times in the chest. Morales attorney, Brad Phillips, told the Times, "Our preferred alternative is to see the death penalty eliminated." To date, Attorney General Jerry Brown has not decided if he will appeal the ruling.

Early Test for Obama: The Supreme Court is expected to consider the case of a suspected al-Qaida sleeper agent Ali al-Marri on Tuesday, in what could be an early test regarding the handling of terrorists for the new administration according to this AP story by Mark Sherman and Meg Kinnard. Al-Marri, who is a legal resident in the U.S., is seeking review of his challenge to the Bush Administration's authority to detain him indefinitely him without charges or trial. If the Court agrees to hear al-Marri's case it will be argued next year. Brad Berenson, a former Bush Administration lawyer and Harvard classmate of the President-elect, said "Al-Marri is one of those cases where the rhetorical necessities of the campaign are likely to collide with the security necessities of governing."

Angered, D.C. Police Call for E-Mails

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In today's WaPo, Theola Labbé-DeBose and Robert E. Pierre report on an unusual police strategy:

D.C. police, frustrated that a teenage robbery suspect they have arrested kept getting released, took to cyberspace yesterday in an unusual effort to lobby judges and city officials to keep him off the streets.

Exasperated by the third arrest of the same suspect in a string of 21 robberies, a D.C. police official sent an electronic bulletin to residents of Columbia Heights pleading for them to flood Peter Nickles, the city's top attorney, with calls and e-mails demanding that the suspect not be released.

As of last night, he hadn't been.

Under the subject line "ALERT ALERT ALERT ALERT ALERT," Inspector Edward Delgado said the teenager allegedly had been sneaking up behind victims, knocking them to the ground and swiping whatever he could: money, cellphones, iPods.

(The title of this post is the headline of the print version of the story.)

The special treatment of juveniles in juvenile court is for the purpose of straightening out kids who have gone astray with minor to midrange offenses such as vandalism and car theft. When they have graduated to major crimes of violence such as robbery, rape, and murder, it's time to take off the kid gloves and prosecute these crimes as crimes. That is particularly true for repeat offenders.

Maryland DP Commission

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The dissent picked up two more votes on Maryland's death penalty study commission, reports Gadi Dechter in the Baltimore Sun.

In an interview, [Attorney General Douglas] Gansler, a Democrat, said that he did not believe lawmakers would be greatly influenced by the recommendations of a commission and that he expects the General Assembly to retain the practice."This commission was stacked from the beginning to come out with findings against the death penalty," said Gansler, a former chief prosecutor in Montgomery County. He said he supports the death penalty if it is handled in a "fair, race-neutral, socioeconomic-neutral way."

California Lethal Injection Decision

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The California Court of Appeal, First District has held that the lethal injection protocol is a regulation subject to the Administrative Procedures Act. The decision in Morales v. Cal. Dept. of Corrections and Rehabilitation is here. If CDCR had simply checked the boxes on the APA when this first came up, the regulation would be final by now.

News Scan

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Kentucky to Execute Chapman Tonight: Marco Allen Chapman, the confessed child killer who has sought execution since his conviction four years ago, is scheduled to be put to death tonight. A story by Courier-Journal writers Jason Riley and Deborah Yetter reports that Chapman's execution would be the first in Kentucky since 1999. In 2002, Chapman sexually assaulted Carolyn Marksberry and slashed the throats of her daughter Chelbi, 7, and son Cody, 6. Both Chelbi and Cody were killed while Carolyn's eldest daughter, Courtney, 10, was cut only in the face and survived the incident by playing dead.

Another Texas Killer Put to Death: Texas executed its 18th murderer yesterday as reported by AP writer Michael Graczyk. Robert Hudson received the death sentence for the 1999 murder of his ex-girlfriend, 35-year-old Edith Kendrick. The victim died from six to eight stab wounds, including three to her heart. During the attack, Kendrick's eight-year-old son was slashed in the throat while trying to protect her. The boy survived. Prior to the murder, Hudson had been convicted at least eight times for other crimes, including a 1987 Dallas murder.

Appeals Court Strikes Down Residency Restriction: California's Fourth District Court of Appeal has unanimously ruled that the provision of Proposition 83 (Jessica's Law) that prohibits registered sex offenders, sentenced before the law was passed, from living within 2,000 feet of schools or parks amounts to additional punishment. A story by SF Chronicle writer Bob Egelko reports that the decision is focused on defendants convicted and sentenced before the measure was was adopted in 2006, who have since been released on parole. For more commentary check out today's Blog Scan.

Blog Scan

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Five Detainees Ordered Released: As reported yesterday on SCOTUSblog, and today in the New York Times and the Wall Street Journal , U.S. District Judge Richard J. Leon ordered the release of five Algerian Guantanamo detainees while ordering the continued detention of a sixth. The 14-page ruling can be found here. Judge Leon's ruling is the first decision addressing the Justice Department's justification for holding specific detainees. One of the detainees ordered released was Lakhdar Boumediene, the same Boumediene who was named in last term's Boumediene v. Bush. Lyle Denniston also reports on SCOTUSblog that "in an unusual added comment" Judge Leon suggested that the Justice Department forgo appeal of the five prisoners and allow them to return to Bosnia where they were captured. The Justice Department has not yet announced whether it will appeal.

Mukasey on U.S. Treatment of Detainees: It was almost as if the Wall Street Journal knew Attorney General Michael Mukasey would be making headlines this morning when it decided to run his Op-ed in today's edition. According to this post by Jonathan Adler at the Volokh Conspiracy, Mukasey's Op-ed addresses issues that are similar to those he addressed in last night's speech at the Federalist Society's Annual Lawyers' Convention. The Op-ed addresses yesterday's detainee decision and urges Congress to work with the current and new administration to establish a uniform framework for detainee cases. Mukasey believes three things: "First, Congress must make clear that release from the Guantanamo Bay military base does not mean that a detainee is entitled to enter the United States;" "Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies;" and "Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs."

California Court Finds Sex Offender Restrictions to Be Punishment: At Sentencing Law and Policy, Doug Berman posted yesterday on a decision from a California Court of Appeal that "found that the residency restrictions in California's sex offender registration law are 'punishment' for Apprendi purposes." The decision, from the Fourth District of California the Court of Appeal, found an Apprendi violation because the judge "subjected defendant to the residency restriction by requiring sex offender registration based on its own fact-finding" when the jury had acquitted him of any sexual offense. The judge may not have been out of line, however, as the jury did convict the defendant of misdemeanor assault of a 12 year-old girl. The decision can be found here.

Attorney General Mukasey

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Last night, I attended the annual dinner of the Federalist Society, where the guest speaker was Attorney General Michael Mukasey. Mr. Mukasey gave a strong speech defending the Bush Administration's success in defending the nation from further terror attacks. He rebuked critics who attacked the administration's programs as violating the rule of law even while the critiques were completed devoid of any legal analysis. Finally, he attacked as irresponsible the calls by some members of Congress for criminal prosecution of DoJ lawyers who had simply given their best advice on what was and was not lawful at a time of national crisis.

As he was winding up, his voice began to break up. Most of us thought he was simply getting choked up at the thought of dedicated people in his department being threatened in this irresponsible way. Then he became unable to speak and was obviously going to fall, but his security agents caught him. A doctor in the house (in an evening gown) administered aid until the paramedics arrived in what seemed like a very long time. They took him out to a hospital. Those of us in the audience thought he had had a stroke or heart attack.

Today, this story by Carrie Johnson and Clarence Williams of the WaPo and this AP story by Matt Apuzzo and Lara Jakes Jordan indicate it is less serious than we thought. He is said to be in good spirits with strong vital signs.

We wish him a speedy recovery.

Update: The AG finished his speech by email, quoted after the jump. His prepared remarks are here.

News Scan

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No Death Penalty For Triple Murders: A story from the KX Net reports that a a convicted drug dealer, charged with murdering three women at a Florence hair salon in Montana, is not eligible for the death penalty. In an order signed Monday, U.S. District Judge Donald Molloy agreed with defense lawyers who said a grand jury indictment does not accuse Lincoln Benavides of personally and directly killing the victims. Benavides is accused of killing the three women, who were found with slit throats, on Nov. 6, 2001. His co-defendant remains eligible for the death penalty and has pleaded not guilty. Prosecutors allege the murders were related to a drug ring run by Benavides.

Justice Department And The NYPD Feud Over Wiretap Requests: Evan Perez from the Wall Street Journal reports that NY City police and Justice Department officials have long been rivals over how to keep the nation's largest city safe from terrorist attack. According to Perez, the ongoing rivalry has devolved into a feud over the use of national security surveillance wiretaps, with both sides accusing each other of endangering national security. In letters, NY Police Commissioner Raymond W. Kelly and Attorney General Michael Mukasey have sparred over how officials from the Justice Department and FBI handle requests made by NY City police for warrants to conduct national security surveillance. Warrant requests must go through the Justice Department before they are submitted to the Foreign Intelligence Surveillance Act (FISA) court. Mr. Kelly has complained, among other things, that Justice officials are overly cautious about submitting requests to the FISA court. Mr. Mukasey has defended the Department, arguing it is only upholding FISA. Mr. Kelly's allegations are contrary to to the reputation the Bush administration has developed among civil-liberties groups, which say the administration is too willing to allow eavesdropping that threaten Americans' civil liberties. The New York Times also has this story.

The Right to Counsel vs. the Need to Bar Tainted Legal Fees: An article by Dan Slater from the Wall Street Journal reports that the Justice Department has failed to provide guidance on how defense attorneys can protect themselves against prosecution for taking legal fees that turn out to be tainted by dirty money - thus deterring them from representing accused drug dealers. The criminal defense bar is closely watching the coming trial of a prominent Miami attorney, Ben Kuehne who was hired by a fellow attorney to vet the source of his fees and then indicted for money-laundering. The Justice Department says that Kuehne approved assets for sale that he knew were tainted with the proceeds of drug money. The defense bar worries that accepting legal fees from questionable sources could interfere with the Sixth Amendment's right to counsel of one's choice. Some claim there are no clear guidelines for attorneys to follow that ensure drug defendants aren't using ill-gotten gains to fund their legal defense.


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Pennsylvania has filed its certiorari petition seeking Supreme Court review of the Third Circuit decision overturning the death sentence of the notorious Mumia Abu-Jamal. The case is Beard v. Abu-Jamal, No. 08-652. Abu-Jamal's petition seeking review of the Third's decision to uphold his conviction is due next month.

Blog Scan

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Tomorrow is a Big Day for the Detainees: At Scotusblog, Lyle Denniston provides a "primer" detailing detainee cases that federal courts will hear tomorrow, and next week. He also comments on the significance of each of the cases. Beginning at 9:30 am a three-judge panel of the D.C. Circuit will hold a hearing in Bismullah, et al., v. Gates, to determine whether the D.C. Circuit has lost the authority to decide detainees’ challenges under the Detainee Treatment Act of 2005. The DTA had wiped out the courts' authority to decide these challenges, but, Boumediene v. Bush found the current DTA to be inadequate. With the DTA process still intact under the ruling, the Justice Department is arguing Boumediene left open only one avenue of review for detainees - habeas. Next up, U.S. District Judge Richard J. Leon is expected to issue his first ruling. He is expected to orally announce whether, with respect to six of the detainees, "the government, using both public and secret information, justified continued confinement of those captives? If not, what remedy will the judge impose?"

California Supreme Court Agrees to Decide the Constitutionality of Prop. 8: At Volokh Conspiracy, Eugene Volokh comments on this AP article about the high court's decision to hear three challenges to the constitutionality of Prop. 8. The petitioners in each of the cases have claimed Prop. 8 abridges the civil rights of a vulnerable minority group. Each argues "that voters alone did not have the authority to enact such a significant constitutional change...." Volokh is optimistic about the Court's resolution of the issue. He states it is "important to know what the law is on this, especially given the likelihood that Prop. 8 invalidates same-sex marriages that had been entered into after the earlier court decision but before Prop. 8's enactment." He also believes the court will hold that Prop. 8 was a valid amendment which "amends the state constitution in a way that supersedes the court's interpretation of the preexisting constitutional provisions."

North Carolina's Death Penalty: Hat tip to Doug Berman at Sentencing Law and Policy for providing a link to a Charlotte Observer article by Dan Kane that details yesterday's oral arguments over North Carolina's death penalty. Apparently, the North Carolina justices chided doctors and legislators for not resolving the lethal injection deadlock sooner. Earlier posts and news articles reported that North Carolina has effectively endured a two-year stalemate on executions.

News Scan

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East Bay Murderer Gets Death Penalty: Paul T. Rosynsky reported in the Mercury News that former Navy sailor Anthony McKnight smiled and openly laughed as he was sentenced to death for killing and raping five women in 1985 by an Alameda County Superior Court judge. McKnight's rampage began in October 1985 and ended four months later when the body of Beverly Bryant, 24, was found brutally beaten and raped in the courtyard of Howard Elementary School in Oakland. McKnight, was serving a 63-year prison sentence for assaulting six women from 1984 though 1986, will now be transported to the state's Death Row.

Ohio Murderer Executed: Gregory Bryant-Bey was executed today after the U.S. Supreme Court denied his request for a 60-day reprieve as reported by AP writer Andrew Welsh-Huggins. He died by lethal injection at 10:41 a.m. EST at the Southern Ohio Correctional Facility in Lucasville. Bryant-Bey was the second inmate put to death in Ohio since the end of last year's unofficial national moratorium on executions. He was convicted of the 1992 stabbing death of a collectibles store owner in Toledo. A previous post on the case is here.

A MetroCard Saves Murder Suspect: A story from the NY Times by Benjamin Weiser reports that a man named Jason Jones was arrested for a fatal shooting in the Bronx in May but was able to use his MetroCard to show that he was nowhere near the crime scene. The card showed that it had been used on a bus, and later on a subway roughly five miles from the shooting. Weiser reports that in an era before plastic MetroCards, which track and store data on where and when the cards are used in a central computer system, this type of investigation would not have been possible. In at least one instance, MetroCard's "electronic evidence" resulted in a conviction. Federal prosecutors also charged Jones' older brother, Corey, in the shooting. Both brothers have been released on bond for now, an unusual step in a federal murder case, while prosecutors continue to investigate.

Obama Expected To Appoint A Woman To The Supreme Court: An article by LA Times reporter David Savage predicts that a shift to the left on the Supreme Court is unlikely since none of the conservative justices are expected to retire in the next four years. While President Elect Obama has called former Justices Warren, Brennan and Marshall his heroes, many expect his first appointment to be a woman since there is currently only one woman on the Supreme Court. Some of the candidates include Judges Diane Wood Seventh Circuit Court of Appeals; Sonia Sotomayor of the Second Circuit; and Elena Kagan dean of Harvard Law School. The story suggests that Obama's background as a law professor, makes it unlikely that he will rely heavily on advisors to select his appointments for the high court.

On the other hand, "An official in the Obama camp told the [New York] Times that the Newsweek report was 'wrong.'"

Palazzolo notes that the controversial pardon of Marc Rich would likely come up in confirmation hearings. There is another issue that requires airing if Holder is indeed the nominee. That is DoJ's controversial data dump late in the Clinton Administration of uncontrolled numbers on the ethnic breakdown of federal capital cases.

Blog Scan

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Some Rehnquist Papers Made Public: At Legalities, Jan Greenburg reported on yesterday's release of a few of former Chief Justice Rehnquist's papers. She also provides this link to Adam Liptak and Jonathan Glater's report of what researchers came across. While some of the papers revealed a personal struggle over whether or not Rehnquist should recuse himself on a case, the more blog-worthy papers revealed Rehnquist's less serious side. For example, Rehnquist once suggested an annual skit. He wrote: "I would enjoy seeing what each annual crop of law clerks, together with such help from the Justices that they might wish, could do in the way of a gridiron show or other parody or satire on the court." Unfortunately, Liptak and Glater did not find the majority of papers to be very stimulating. They characterize the documents as "dry as the pages themselves." Levine says the case files "shed little light on what drove his decision-making." Not all of the papers have been released. Greenburg reports Rehnquist dictated that his files remain private until the death of every Justice who was sitting with them in a particular term. "That means we only have access to cases over a three-year period, since John Paul Stevens joined the Court in 1975."

The Eighth Circuit Rules on Extraterritorial Enforcement of Arrest Warrants:
At Volokh Conspiracy, Orin Kerr has this interesting post on Engleman v. Murray, an Eighth Circuit decision handed down yesterday. The facts of the case make for an interesting decision on the enforcement of an Arkansas arrest warrant in Oklahoma. Apparently, Engleman made a 911 call and gave his address as "24512 Van Fleet Road, Siloam Springs, Arkansas." When police investigated the call, they discovered that an Arkansas warrant was out for Engleman's arrest. However, while Engleman's mailbox was in Arkansas, his actual home was located in Oklahoma. When officers arrested Engelman, he contested their right to execute the warrant in Oklahoma. He claimed police violated his Fourth Amendment rights by carrying out the Arkansas warrant in Oklahoma. The Eighth Circuit agreed. It concluded that under the originalist framework articulated by the Supreme Court in Virginia v. Moore, the Arkansas warrant was invalid in Oklahoma. The Eighth Circuit then went on to conclude the officers had qualified immunity because under the circumstances, the officers could reasonably believe that they were in Arkansas, not Oklahoma, and therefore had authority to carry out the warrant.

News Scan

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Ayers Talks Death Penalty: Anti-war activist William Ayers, and former member of the Weather Underground, emphasized his opposition to the death penalty in a speech at the Georgetown University Law Center last night reports Gregg Re from The Hoya. Recently, Ayers has attracted national attention during the presidential campaign for his past association to President-elect Barack Obama. During his speech Ayers specifically condemned the atmosphere at the execution of serial killer John Gacy in 1994 and said that the death penalty evokes disturbing emotions and occasionally punishes the innocent. Ayers also challenged claims that he is a terrorist, criticizing the Vietnam War and the current war in Iraq as terrorist acts. Some students and alumni in attendance questioned the Law Center’s invitation to Ayers, arguing that the Law Center should not condone violent radicalism.

Court Stays Execution of Texas Murderer: An AP story by Michael Graczyk reports that the Texas Court of Criminal Appeals has stayed the execution of Houston killer Eric Dewayne Cathey. Cathey was convicted of the abduction and murder of a 20-year-old woman in Houston more than 13 years ago. Appeals were filed late in the day on Monday, arguing Cathey was mentally retarded and ineligible for execution under U.S. Supreme Court rulings.

Court May Break NC Stalemate On Executions: According to an article by Dan Kane from the Charlotte Observer, North Carolina's highest court will hear legal arguments today that could break the two-year stalemate on executions or extend the de facto moratorium. State law requires that a doctor be present during executions, but, the NC Medical Board prohibited doctors from taking part. The board contends such participation violates the profession's mission to preserve life. This all began last March when North Carolina's Department of Correction filed suit after doctors said they could not risk their licenses by participating in executions. A state Superior Court Judge sided with correction officials, and prompted medical board to appeal. If the North Carolina Supreme Court rules that the medical board cannot bar doctors from taking part in executions, lawyers representing death row inmates plan to claim the state's execution process is invalid because public hearings were not held prior to its adoption.

Killer Of 3-Year-Old Escapes Death Penalty: Jim Walsh from The Arizona Republic reports that Christopher Langin escaped the death penalty Monday for the shocking 2005 murder of his best friend's 3-year-old daughter. The jury gave Langin life in prison. One of Langin's defense attorneys, Joey Hamby, said jurors told him the first vote was 7-5 for death but eventually shifted to a unanimous verdict for life in prison. Langin was found guilty of felony murder committed during the crime of child abuse.

A Real Psychopath?

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Irrespective of the debates about culpability and psychopathy, the noted traits of the psychopath - the glibness, lack of remorse, irresponsibility - speak volumes about the type of folks given the psychopathic label. And while merely reading a court opinion in no way makes a diagnosis, the case of O'Kelly v. State (#S08PO916) provides a chilling account of someone likely deserving of that label:

Blog Scan

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Without En Banc Three Judge Panel Will Decide Fate of Detainees: Over the weekend, Lyle Denniston posted on the D.C. Circuit Court's Friday refusal to to grant en banc review of the Uighurs' plea for initial review by the full Court. The order can be found here. This means that the same panel that blocked a federal judge’s order to release the 17 Chinese Muslim Uighurs into the United States on October 20th, will hear the detainees' plea on Monday, November 24th.

Prison Overcrowding Prompts Sentence Reform: At Sentencing Law and Policy Doug Berman posts articles from the Boston Globe and the Idaho Press-Tribune that address prison and county officials plans to change sentencing procedures in an effort to reduce prison overcrowding. The Massachusetts plan will apparently reform mandatory minimum sentences, while a county is Idaho is proposing to book and release for minor offenses and reliance on technocorrections (like security ankle bracelets) to reduce the number of offenders in county jail.

Former Justice O'Connor and Linda Greenhouse on C-Span: On Saturday, America & the Courts ran a program featuring O'Connor and Greenhouse's discussion on covering the Court. C-Span provides a link to the program here. Hat tip: Howard Bashman at How Appealing.

Diagnostic Accretion in Shadow

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Christopher Lane at the L.A. Times has this op-ed on the development of the forthcoming 5th edition of the Diagnostic and Statistical Manual of Mental Disorders. As noted before, it's a solid bet the diagnostic manual will grow with each edition:

Over the summer, a wrangle between eminent psychiatrists that had been brewing for months erupted in print. Startled readers of Psychiatric News saw the spectacle unfold in the journal's normally less-dramatic pages. The bone of contention: whether the next revision of America's psychiatric bible, the "Diagnostic and Statistical Manual of Mental Disorders," should be done openly and transparently so mental health professionals and the public could follow along, or whether the debates should be held in secret.

One of the psychiatrists (former editor Robert Spitzer) wanted transparency; several others, including the president of the American Psychiatric Assn. and the man charged with overseeing the revisions (Darrel Regier), held out for secrecy. Hanging in the balance is whether, four years from now, a set of questionable behaviors with names such as "Apathy Disorder," "Parental Alienation Syndrome," "Premenstrual Dysphoric Disorder," "Compulsive Buying Disorder," "Internet Addiction" and "Relational Disorder" will be considered full-fledged psychiatric illnesses.

Hat tip: Mind Hacks

News Scan

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Iowa Sex Offender Cohabitant Law Upheld: An AP story by Michael Crumb reports that the Iowa Supreme Court, in a split opinion, upheld a law that bars single parents from living with convicted sex offenders. The case involves a Coralville woman found guilty of child endangerment and sentenced to one year probation because she lived with a convicted sex offender and let her children stay with the man - so long as they were supervised by her mother or her sister - while she was at work. In her appeal, Holly Mitchell argued that her equal protection rights were violated because the Iowa Legislature decided to distinguish between married and unmarried people, subjecting only unmarried people to criminal charges for engaging in the same behavior as married people.

Ohio Man Faces Execution Wednesday: A story from Chillicothe Gazette reports that a man whose arrest in one killing led to a death sentence for another killing will face execution Wednesday. Gregory Bryant-Bey has been on death row for 16 years, and is scheduled to die by lethal injection for the 1992 killing of Toledo collectibles store owner Dale Pinkelman. Pinkelman's murder went unsolved for more than three months. It was not until detectives noted similarities in the killing of Peter Mihas, owner of The Board Room restaurant in downtown Toledo, that they began to suspect Bryant-Bey in Pinkelman's murder. Bryant-Bey faced two death penalty trials for each killing. He was given a life sentence for Mihas' slaying and the death penalty for Pinkelman's killing.

Baby Killer Gets Baby Sentence: A Kentucky man originally charged with murder for beating his 8-month-old stepdaughter to death agreed to plead guilty to the lesser charges of manslaughter and criminal abuse, and will serve 10 years for the crimes. A story by writer Julia Hunter in the Kentucky New Era reports that Robert Curlee received his sentence last week for killing little Jillian Niles on October 10, 2004. At the time of the child's death Curlee was being investigated for child abuse after it was discovered that she had fractured ribs. Curlee's wife, Megan Niles-Curlee, was also charged with murder and first-degree criminal abuse. Last week, she pleaded guilty to lesser charge of endangering the welfare of a minor, a misdemeanor, on the criminal abuse charge. She was sentenced to one year of unsupervised probation.

Bell v. Kelly Drop-Kicked

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The U. S. Supreme Court this morning dumped the capital habeas case of Bell v. Kelly with a one-line order: "The writ of certiorari is dismissed as improvidently granted." Sometimes "improvidently granted" is a term of art, but this time it is literally true. They took a case that does not present the issue the petitioner claimed it presents. As noted here, the premise of the question presented -- that the state court refused to consider evidence -- is false, and counsel for petitioner admitted as much in oral argument. As discussed here, the case could have been used to resolve some important issues nonetheless, but the Court decided to simply dump it.

Update: Doug Berman at SL&P has this post invoking the late Gilda Radner: "Oh, never mind."

That is the title of this Gallup report by Lydia Saad. On the generic question (problematic for measuring absolute support but useful for gauging long-term trends), the result is 64-30, down a tad from last year but the same as three years ago. On the better-worded too often / not often enough question, the sum of not often enough and about right (support for current law or tougher), comes to 71% versus 21% for too often.

For all the talk about increasing opposition to the death penalty, answers to this question have been remarkably steady for the seven years Gallup has asked it.

Just Can't Help Themselves

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John Seabrook of the New Yorker has this in-depth article about Dr. Kent Kiehl at the University of New Mexico titled Suffering Souls. As the article details, Dr. Kiehl is the leading expert in the field of brain imaging and psychopathy. As part of his work with the Mind Research Network, Dr. Kiehl is using a portable fMRI machine to image hundreds of prison inmates and juvenile delinquents. The work is impressive and illuminating, but prone to Overclaim Syndrome as is evident near the end of the article:

Psychopathy also raises fundamental issues about justice. At the core of our judicial system is the assumption that someone who appears sane is culpable for his actions. (In the U.S., there is no insanity defense for psychopaths.) As Decety, of the University of Chicago, put it to me, “We still basically work out of a Biblical system of punishment—we don’t consider, in most cases, to what extent the offender’s actions were intentional or unintentional. But what neuroscience is showing us is that a great many crimes are committed out of compulsion—the offenders couldn’t help it. Once that is clear, and science proves it, what will the justice system do?” Joseph Newman told me, “I go around and give speeches to the staff in prisons, saying the inmates are not just assholes, and afterwards the guards come up and say, ‘Enjoyed your talk, Doc, but are you saying these guys aren’t responsible for their crimes?’ ”

Besides the fact that mens rea is very much part of American criminal law, there exist at least two problems with this sort of conclusion. First, despite the weight of neuroscience showing abnormalities in the brains of psychopaths, the theory that psychopaths have uncontrollable impulses remains unproven. This is no small matter as controllable impulses are writ large in human nature. Second, what matters for the law is not whether the brain is compromised but whether such impairments are so substantial that they deprive one of the ability to know their behavior was wrongful at the time of the alleged crime. Predisposition for behavior - which is what the hard line biological psychopathy crowd is asserting - is not sufficient to reduce culpability - and for good reason. We are all predisposed genetically towards behaviors. And some people, unfortunately, suffer worse biological deficits than others. But legal culpability is grounded in a social heritage which sets the exculpating bar high under the assumption that everyone brings liabilities to the responsibility table. Our society has determined that outside severe deficits in rationality, one is expected to conform their behavior according to the law irrespective of their biological imperfections.

Hat tip: Furious Seasons

Today's Grants and Orders

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The U.S. Supreme Court granted review in five cases. The orders list can be found here. The Court granted certiorari in four cases, and agreed to hear an appeal from Citizens United in Citizens United v. Federal Election Commission (08-205). Filings in each of the cases can be found at SCOTUSblog. One of the more interesting grants, Yeager v. United States, raises the issue of "Whether, under the Double Jeopardy Clause, the government may retry defendants acquitted of some charges on factually related counts on which the jury failed to reach a verdict." A gut reaction to this question is "Yes." But in this case, Yeager is claiming that collateral estoppel precludes relitigation of the facts common to his acquitted counts (conspiracy, securities fraud, and wire fraud charges) and the counts to which the jury could not decide (insider trading and companion money laundering charges). The decision could address the applicability of Ashe v. Swenson, 397 U.S. 436 (1970), and whether the preclusive effects of collateral estoppel have any bearing in cases where it is unclear that the jury acquitted because of facts that would bar a retrial.

Two other federal criminal cases were granted on defendant's petitions: (1) Abuelhawa v. U.S. on using a cell phone to buy drugs, oddly punished much more severely than just buying drugs, and (2) Dean v. U.S. on the continuing theme of what it means to use a gun in committing a crime, in this case whether an accidental discharge constitutes firing the gun.

All right then, just this once

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From The Economist print edition (the title above is theirs, also):

Mixed signals from Canberra over the Bali bombers

THE death sentences against the three Bali bombers put Australia—88 of whose nationals died in the attacks—in a difficult spot. It officially opposes capital punishment and is seeking clemency for three Australian drug-traffickers facing execution in Indonesia. Even some of the Bali victims’ families spoke out against the shedding of more blood. Out of respect for such views, Indonesia delayed the executions during a five-day visit to their country this month by Prince Charles—heir to throne of Britain, Australia and several other countries that oppose capital punishment.
However, many Australians disagree with the government’s policy and there has been an especial clamour for the maximum penalty to be paid by the Bali bombers. Ahead of the executions the prime minister, Kevin Rudd, was pushed to say that the bombers “deserve the justice that they will get”. But within hours of the Bali three’s execution, Mr Rudd’s government announced a new campaign to press for a United Nations ban on capital punishment worldwide.
Frustrated at these mixed signals, Indonesia’s foreign minister, Hassan Wirajuda, has asked Australia to respect his country’s legal system. Indeed, the Rudd government’s drive for a global ban on the death penalty will conflict with its desire to strengthen relations with Australia’s Asian neighbours. Singapore, Malaysia, Vietnam, China and Japan all execute criminals and generally resent being told not to. Mr Rudd’s campaign for a ban will win many backers, especially Europeans, but its chances are not good.

News Scan

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Texas Executes 17th Murderer: A New York parolee was executed in Texas Thursday as reported by the Associate Press. Denard Manns, who had an extensive criminal record, was convicted and sentenced to die for the 1998 robbery, rape and murder of 26-year-old Michelle Robson, an Army medic at Fort Hood.

Money & Judges: Should judges who gain their seats in contested elections recuse themselves in cases involving contributors to their campaigns? The Supreme Court has taken the case of Caperton v. A.T. Massey Coal Company, Inc., et al. to make that determination. An Associate Press story by Mark Sherman reports that the case involves a member of the West Virginia Supreme Court who ruled in favor of $3 million contributor to his election.

Death Penalty a Bargaining Tool: A Utah man facing changes of capital murder has plead guilty in order to avoid the death penalty. A story by Stephen Hunt in the Salt Lake Tribune reports that Donald Bret Richardson agreed the plea rather than face trial for first strangling his ex-girlfriend to death and then shooting a former friend an hour later. Richardson admitted to the killings last April shortly after his arrest. According to the story, he originally wanted to be executed but eventually agreed to the plea bargain to avoid putting his family through a lengthy capital trial.

AEDPA Fast Track Regs

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Marcia Coyle reports in NLJ that the Department of Justice plans to finalize, before the end of the current administration, the regulations for approving states for the long-delayed fast-track for capital habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996. In the Patriot Act reauthorization bill, Congress took the authority to decide whether a state qualified away from the federal habeas court and gave it to DoJ with review by the DC Circuit. The conflict of interest for a court to decide whether tight time limits would be imposed on itself had resulted in that vital reform gathering dust. Why DoJ has let the simple step of implementing regulations gather dust this long is unexplained.

Although the regulations will be final in the current administration, the result of the foot-dragging is that the applications will be processed by the Obama Administration. Fortunately, review in the DC Circuit will be de novo. The other side insisted on that when the bill was passed.

News Scan

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Man Caught Texting 12-Year-Old Girl Gets 6 Years: A story from the AP reports that a man from Oregon has been sentenced to 6 years in prison for attempted rape after a mother discovered his inappropriate text messages on her 12-year-old daughter's cell phone. Patrick Lee Kenney pleaded no contest to attempted sexual abuse and furnishing obscene material to a minor. Kenney met the girl on the MySpace site. Prosecutor David Groff said the case is a reminder about the dangers children face from Internet predators.

Jury Recommends Death Sentence; Defendant Says He Doesn't Blame Them:
Alabama Press Register reporter Gary McElroy reports that a man condemned to die for the 2003 slaying of Mobile, Alabama motel owner Pete Patel told jurors they should not feel bad about their decision. Under Alabama law, the jury's decision in capital cases is considered a recommendation; the judge can accept or override it. Although Whatley's defense counsel had asked Judge Johnston to immediately adopt the jury's sentence, the judge told Whatley he simply could not agree to sentence him Wednesday because, "frankly, I have not made up my mind." The sentencing hearing has been set to Dec. 11.

Italy's High Court Rules In Favor Of Mercy Killing:
An AP story by Ariel David reports that Italy's highest court ruled Thursday in favor of a man's request to disconnect his daughter's feeding tube and allow her to die after 16 years in a vegetative state. Italy does not allow euthanasia using methods such as fatal doses of drugs. Patients have a right to refuse treatment, but no law allows them to have a living will in case they become unconscious. Englaro's father said his daughter visited a friend in a coma shortly before her accident and expressed the will to refuse treatment should she fall into a vegetative state. Today's ruling has evoked comparisons to that of Terry Schiavo, the American woman at the center of a right-to-die debate until her death in 2005. Schiavo was diagnosed as being in a persistent vegetative state after her heart stopped in 1990.

Dead monsters hatch no plans

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Andrew Bolt in the Herald Sun notes that many Australians cheered when the Bali bombers were finally executed. Why, then, is their government leading a drive to ban all executions worldwide?

We may well argue that the death penalty shouldn't be imposed so lightly or freely, but to ban all executions everywhere is not especially humane - or a decision that's ours to make or impose.
Some countries are battling such threats and such monsters that they cannot afford to be as delicate as we can, far away in our suburban safety.


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In the question presented in the petition for writ of certiorari in Bell v. Kelly, argued today in the U.S. Supreme Court, Richard Bress of Latham and Watkins referred to the claim in federal court as being "predicated on evidence of prejudice the state court refused to consider...." Right out of the gate in today's argument, Justice Alito wanted to know exactly what evidence the state court refused to consider. "No, Your Honor. The State court did not refuse to consider evidence proffered to it.... The State court refused to permit the evidence to be fully developed, Your Honor. They didn't refuse to consider evidence." That is a completely different thing. Bress misrepresented the case to the Supreme Court and blew his credibility.

That isn't just bad advocacy, it is abysmal. And no, death is not different. Big name firms that want to do these capital cases should take care that they do not stain their own reputations in the process.

News Scan

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First-Year Law Student Fights Intruder For His Laptop: A story from KTAR news reports that a student from Arizona State University, wrestled and fought with an intruder who demanded his laptop. Police said Gabriel Saucedo entered Alex Botsios' apartment through an open window early Thursday morning. When Botsios woke up, Saucedo threatened him with a baseball bat, police said. Botsios was willing to give up his wallet and guitars without a struggle, but not the laptop. Police took Saucedo to the hospital for stitches and then to jail. Botsios had no significant injuries. Happy to still have his laptop containing months of school work, he said he learned to not leave windows open.

NJ School Officals Can Now Search Student's Cars Without A Warrant: Education Writer Diane D'Amico reports that the New Jersey state appellate court ruled that school officials do not need a warrant to search a student's car if it is parked with special permission on school grounds and if they reasonably suspect evidence of illegal activity will be found in the vehicle. The court has said the privacy interests of the student are outweighed by the interest of administrators in maintaining a drug-free environment. In its decision, the appellate court also said that the U.S. Supreme Court has previously ruled that a school setting lessens the requirements traditionally applied to searches, which has allowed schools to search book bags and lockers.

Jury Considers Death Penalty For Courthouse Killer: An AP story reports that prosecutors are urging jurors to recommend the death sentence for Brian Nichols convicted of killing a judge and three others in an Atlanta courthouse shooting spree. Prosecutor Kellie Hill told jurors Wednesday that Nichols would try to escape again and kill if they sentenced him to life in prison. Nichols had pleaded not guilty by reason of insanity. However, the same jury last week convicted him of 54 counts including murder. Authorities say Nichols has already been plotting to break out of jail.

Change?: SF Chrontrarian Debra Saunders has this post-election comment on what will not change in Washington.


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The U.S. Supreme Court issued its first opinion of the term in an argued case, Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the "boink the whales" case. SCOTUSblog has a report here.

On the argument calendar for today is Bell v. Kelly, which could be the "sleeper" case of the term. Both sides are "all-in" on the question of the interaction between new evidence in federal habeas hearings and the deference standard of 28 U.S.C. § 2254(d). Petitioner claims that (1) the question of whether the state court decision was "reasonable" for the purpose of 2254(d) must be determined solely on the state court record, and (2) if petitioner presents substantial new evidence in federal court in support of his claim, that makes it a new claim not subject to the deference standard.

Our side responds that he is right on (1) but wrong on (2). A "claim" is one legal ground for overturning the judgment. Ineffective assistance is one claim, no matter how many failings of the trial attorney are alleged. If the state court's rejection of that claim on the basis of the evidence state habeas counsel put before it was reasonable, the claim should be denied under 2254(d), and therefore there is no need for a hearing or discovery in federal court. CJLF's brief is here, and our press release is here.

Update: A post-argument note is here.

A Case of Overclaim Syndrome?

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Brain Overclaim Syndrome is pernicious in contemporary legal and behavioral science scholarship. Evidence of its infectious reach now appears in the journal Current Directions in Psychological Science in the article From Genes to Brain to Antisocial Behavior (subscription required) by the Professor Adrian Raine at the University of Pennsylvania. The abstract:

This review summarizes recent brain-imaging and molecular-genetic findings on antisocial, violent, and psychopathic behavior. A "genes to brain to antisocial behavior" model hypothesizes that specific genes result in structural and functional brain alterations that, in turn, predispose to antisocial behavior. For instance, a common polymorphism in the monoamine oxidase A (MAOA) gene has been associated with both antisocial behavior and also reductions in the volume of the amygdala and orbitofrontal (ventral prefrontal) cortex—brain structures that are found to be compromised in antisocial individuals. Here I highlight key brain regions implicated in antisocial behavior, with an emphasis on the prefrontal cortex, along with ways these areas give expression to risk factors for antisocial behavior. Environmental influences may alter gene expression to trigger the cascade of events that translate genes into antisocial behavior. Neuroethical considerations include how responsibility and punishment should be determined given the hypothesis that neural circuits underlying morality are compromised in antisocial individuals.

My goodness, I had no idea scientists had decoded the "neural circuits underlying morality."

Vocabulary Lesson


When citing a statute in oral argument, how do you pronounce the lower case Roman numeral paragraph numbers? In United States v. Hayes today, ASG Nicole Saharsky called paragraphs (i) and (ii) "Romanette one and two." This was new to Chief Justice Roberts. Tony Mauro has more at BLT.

Status Quo at the Supreme Court?

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Tony Mauro in the Legal Times:

As the theory goes, all three justices [Stevens, Souter, Ginsburg] would be happier being replaced under Democrat Obama than they would have been under Republicans John McCain or, for the last eight years, President George W. Bush. Names of possible replacements for the three are bandied about as often as candidates for Obama’s Cabinet.
But as Ginsburg’s broadly dropped hints suggest, justices don’t always follow political timetables for their departures. They often remain as long as they feel their health and their work product are still good. The political persuasion of the president, while sometimes a factor justices consider in timing their departures, rarely is decisive.

News Scan

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Victim Impact Evidence Appeal Denied: An AP story reports that the Supreme Court turned down appeals from death row inmates seeking to limit videos and similar material prepared by murder victims' families for juries. The appeal comes from two California cases in which jurors were shown video mixes of the victims' lives. The defendants' claimed that the videos were unfairly prejudicial and violated their right to a fair trial. The Supreme Court has held that juries can hear victim impact testimony in the penalty phase of capital cases, but it has not said whether certain testimony should be barred as prejudicial. The videos consisted of photographs of both victims, including baby pictures and pictures of the victims' graves. The California Supreme Court had upheld the convictions and death sentences in both Kelly v. California and Zamudio v. California, 07-11425. Kent also has this post on today's orders. This September post also discussed the Supreme Court's review of Kelly v. California.

Ex-Judge Becomes Court-Appointed Attorney and Requests To Spare Killer's Life: From the Houston Chronicle, Allan Turner reports that retired state District Judge Jay Burnett has filed a petition that a killer's death sentence be commuted to life in prison. George Whitaker is sentenced to die on Wednesday for the 1994 murder of 17-year-old Shakeitha Carrier. He also shot his girlfriend's mother, leaving her right hand permanently disabled. He then attacked his girlfriend's sisters, killing one and leaving the 5-year-old with brain injuries. In his petition, Judge Burnett argued that his client was unjustly condemned because the presiding trial judge prohibited the jury from being told that a life sentence in the case would have required the killer to serve 40 years before becoming eligible for parole. He also argued that although brutal, Whitaker's crime did not meet death penalty criteria because prosecutors did not prove the murder occurred during the commission of a felony.

Attorney Seeks New Trial For Convicted Killer: Erin Hartness from WRAL news reports that a Virginia attorney said he plans to file a motion Wednesday seeking a new trial for convicted killer Mike Peterson. Peterson was convicted of first-degree murder in the 2001 for the death of his wife, Kathleen. Attorney Jason Anthony said prosecutors withheld evidence during Peterson's 2003 murder trial, violating a judge's order and the state's laws regarding evidentiary discovery in criminal trials. The allegedly suppressed evidence was a tire iron found by a neighbor. It was tested by the prosecutors but never shared with the defense attorneys. Anthony said that knowing about the tire iron would have considerably changed the defense.

Today's Orders

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Last Friday, the Supreme Court held a conference and granted certiorari in one civil case. The usual pattern is that when the Court announces a grant on conference day the orders list issued the following Monday has no grants. Sure enough, today's orders list has no new grants. On the Opinions Relating to Orders page, we have Justices Stevens' and Breyer's dissents from denial of certiorari in Kelly v. California, No. 07-11073, regarding a victim impact video in a capital case. The Court even has the video posted for our information. I expect to post more on this case shortly. Lyle Denniston has this post at SCOTUSblog.

Blog Scan

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New Detainee Filing from Justice Department: Lyle Denniston reports on SCOTUSblog that the Justice Department has made its final filing before the D.C. Circuit Court in its case to keep 17 Chinese Muslim Uighurs from entering the United States. Previous posts on October 24th and October 7th, give a simple history of the procedure of the case. In its final plea the Justice Department argued the Executive Branch has authority to hold aliens in detention even if they are not considered enemies of the U.S. According to Denniston, the government's reply brief will conclude briefing on whether federal District Judge Ricardo M. Urbina was wrong to find that the 17 detainees were entitled to release under federal habeas law, and that they must be brought to the U.S. to live here at least temporarily. Denniston reports, that the reply brief put new emphasis on the assertion that “the Government retains the sovereign authority, independent of the authority to detain enemy combatants, to hold [the Uighurs] incident to barring them from the United States, and pending efforts to resettle them elsewhere….It is fully lawful for the Government to hold [them] on this second, independent legal basis.” A three judge panel will old a hearing on Nov. 24, and a nine judge panel is deciding on a plea from the Uighurs on whether to take the case from the panel and decide it en banc.

Craiglist Makes Move To Stop Prostitution: At Wall Street Journal Blog, Dan Slater reports that yesterday, Craigslist "agreed to crack down on ads posted by prostitutes, responding to government complaints that the site has become a free clearinghouse for illegal sexual services." The Wall Street Journal and the Associated Press also reported on the agreement. Apparently, Craigslist has agreed, in compliance with requests from the AG's of 40 states, to require every erotic-service poster on the site to provide a working phone number and pay a fee with a valid credit card.The site will then be able to provide that information in response to law-enforcement subpoenas, creating a “roadmap” that can be used to track prostitutes and sex traffickers. The Attorney General of Connecticut, Richard Blumenthal, reportedly brokered the agreement. Blumenthal also told the Wall Street Journal that Craigslist had sued 14 software and Internet companies that help ad posters circumvent its safeguards against inappropriate content and illegal activity.

Government Gives Tribes $3M To Establish Sex Offenders Registry:
At Sex Crimes yesterday, Corey Rayburn Yung reported that the Department of Justice will award $50 million in grants to assist Native American communities, with $3 million of that going to establish sex offender registry and notification programs as part of the Adam Walsh Act. The grant is part of the Department's "technical assistance and support to Indian Country in 2008." The Department met twice with tribes this summer to set-up programs. One meeting discussed the tracking of sex offenders, while the other discussedresearch on violence against Indian women. These programs are additional to last year's initiative which selected ten tribal sites to serve as pilot communities as part of the Department's AMBER Alert in Indian Country Initiative.

Oregon Initiatives

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Oregon votes approved by a 61-39 vote Ballot Measure No. 57: "Increases sentences for drug trafficking, theft against elderly and specified repeat property and identity theft crimes; requires addiction treatment for certain offenders." Final tally here. Info page with link to full text here. An editorial by the Oregonian is here.

SL&P points us to this post at Drug War Chronicle bemoaning the passage of both Measures 57 and 61. They appear to be mistaken. Both the Oregonian editorial and the Secretary of State page linked above indicate that 61 was narrowly defeated.

News Scan

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Aussie Rethinks Opposition to Death Penalty: David Barnett, an Australian writer and lifetime opponent of capital punishment, has this piece in the Canberra Times suggesting that Australia should reconsider its opposition to the death penalty. Barnett's views on the death penalty changed after 80 Australians were killed in 2002, when terrorists bombed a nightclub on the resort island of Bali, leaving 200 people dead. When Indonesia decided to execute the bombers, some in Australia voiced opposition. But for Barnett, "The fate of the Bali Bombers is well warranted."

Overwhelming Juries: An article in today's Wall Street Journal by Leslie Eaton and Amir Efrati, discusses the "danger of overkill" in complex cases. The authors point to the mistrial in the Texas prosecution of the Holy Land Foundation, which was charged with helping terrorists. Jurors were overwhelmed by the 197 counts and an "avalanche of evidence." The urge to build a mountain of evidence and anticipate every conceivable argument is identified as an occupational hazard for many litigators, which can exhaust the jury, leaving it confused and unable to reach a verdict. The authors present several cases to illustrate the problem.

A Bad Omen


President-elect Barack Obama has served notice that he does not consider himself bound by anything he said during the campaign. The day after winning on a theme of "postpartisanship," he has chosen as his White House Chief of Staff a person who is arguably the most extreme partisan in the entire City of Washington, Rahm Emanuel. I fully expected the moderate, postpartisan mask to come off after the election, but even I didn't think it would come off this quickly.


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With all precincts reporting, it appears that California voters have finally approved reapportionment reform, Proposition 11, by a scant 100,000 votes out of 9 million. With more competitive districts, the Legislature may be more responsive to the wishes of the people on crime issues. New districts won't actually take effect until the 2012 elections, but the mere prospect that they could be facing competitive elections in the future may cause some legislators to behave better.

State AG Races

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Here are some state attorney general race results gathered from Google News.

Ind: Greg Zoeller (R)
Mo: Chris Koster (D)
Mont: Steve Bullock (D)
NC: Roy Cooper (D)
Ohio: Richard Cordray (D)
Oregon: John Kroger (D)
Penn: Tom Corbett (R)
Wash.: Rob McKenna (R)
WV: Darrell McGraw (D)

Exit Poll on Judicial Restraint

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Here is a press release from "the polling company, inc." on an exit poll of actual voters commissioned by the Federalist Society.

By a margin of more than 2-to-1, actual voters preferred the President nominate judges and justices who “believe that their roles as judges is solely to evaluate whether a law or lower court ruling is in line with the constitution” rather than those who “believe that their roles as judges is not simply to review the law as it is written and not take into account their own viewpoints and experiences” (67% vs. 24%). A limited judicial philosophy earned the support of a majority of actual voters across all self-identified party and ideological lines including 77% of Republicans, 70% of Independents and 60% of Democrats, and 74% of conservatives, 69% of moderates and 54% of liberals.

Blog Scan

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SCOTUScast on Herring v. United States: At The Federalist Society website, Luke Milligan, an Assistant Professor of Law at the University of Louisville provides commentary on the October 7, 2008 oral arguments for Herring v. United States. Herring is an exclusionary rule case that asks the Supreme Court to decide whether the Fourth Amendment requires the exclusion of evidence seized incident to an arrest conducted on the basis of credible, but ultimately erroneous, information negligently provided by another law enforcement agent. The post also has a brief discussion of the relevant facts.

Seventh Circuit Rules on Mental Health Experts During Sentencing
: Doug Berman at Sentencing Law and Policy has a quick post on a Seventh Circuit's decision in U.S. v. Anderson. According to Berman, Judge Posner upheld a district court's denial of a motion to appoint a mental health expert before sentencing. Posner wrote: "A judge is not required to appoint a mental health expert without a showing that the appointment would have some (not necessarily a great) likelihood of resulting in a reduced sentence." "That showing has not been made."

Getting Off the Abuser List

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From the Ninth Circuit today, Humphries v. LA Co., No. 05-56467:

Appellants Craig and Wendy Humphries ..., [a]ccused of abuse by a rebellious child, ... were arrested, and had their other children taken away from them....
*      *      *
Notwithstanding the findings of two California courts that the Humphries were “factully innocent” and the charges “not true,” the Humphries were identified as “substantiated” child abusers and placed on California’s Child Abuse Central Index (“the CACI”), a database of known or suspected child abusers. As the Humphries quickly learned, California offers no procedure to remove their listing on the database as suspected child abusers, and thus no opportunity to clear their names.
*      *      *
This case presents the question of whether California’s maintenance of the CACI violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them. We hold that it does.

The opinion is by Judge Bybee with Judge Milan Smith and District Judge Richard Mills concurring.

News Scan

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Prosecutors To Seek Death Penalty In Cleveland's East 87th Street Fire: According to an article by the News Net 5, prosecutors will seek the death penalty against 24-year-old Antun Lewis. Lewis was indicted in federal court last month. Lewis will not go on trial until the death penalty request is resolved. Federal prosecutors said Lewis broke into the East 87th Street home three years ago, doused it with gas and set it on fire, killing a woman and eight children inside.

Voters Oppose Prop. 5, Prop. 6, Support Prop. 9: Demian Bulwa, Chronicle staff writer reports that California voters opposed Prop 5 and Prop 6, while supporting Prop 9. Prop 5 would expand programs to divert drug addicts and nonviolent offenders from prison to rehabilitation. Opponents said the program was ripe for abuse. Prop 6 would require spending at least $965 million a year on programs for police, prosecutors, jails and juvenile lockups - a $365 million increase from current spending, according to the state's legislative analyst. Prop 9, however, backed by crime victims, held a significant lead. It would allow victims to speak at bail hearings and limit a defendant's ability to gain evidence from a victim before trial. The measure would also limit the release of inmates due to crowding. That could cost hundreds of millions of dollars a year, the legislative analyst said. Kent's post on the Propositions links you to the Cal SecState results.

Death Penalty For Ex-Con Who Killed Witness: An AP story reports that LA jurors have recommended the death penalty for an ex-con who murdered his former girlfriend after she accused him of raping her. The Superior Court jury returned its verdict Tuesday for 44-year-old Ruben Becerrada. Becerrada was convicted Sept. 29 of first-degree murder and kidnapping for the March 4, 2000, killing of Maria Arevalo. A prosecutor says Becerrada stabbed and strangled Arevalo because she was the only witness in a rape case against him.

Murder Suspect's Brother Tried Jail Break-In: An AP story reports that police say the brother of a murder suspect tried to break into jail when he refused to listen to jail guards who told him there were no visiting hours for prisoners on Monday. Thomas Walsh pleaded not guilty to trespassing and other charges Tuesday and was ordered held in lieu of $6,000 bail. Last week, Walsh's brother, William, was arrested on murder charges. Police said William killed his wife during a fight and then concocted an elaborate ruse to make it appear as though she were the victim of random roadside violence. William is due back in court today.

California Propositions

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Here is a bit of good news this morning. With 90% 95% of precincts reporting, it appears that Proposition 9, the crime victims' rights initiative, has passed by a 6% margin. On the same ballot, the Soros-backed Proposition 5 was rejected by a whopping 20% margin. Results are here at the Cal SecState site. Proposition 6 was also defeated by a large margin, probably reflecting a distaste for ballot-box budgeting at a time of fiscal crisis. For further description of these propositions, see page 6 of CJLF's last newsletter.

Confirming that San Francisco is not entirely devoid of common sense, the hooker proposition lost by 16 points, the SF Chronicle reports. On the same ballot, San Franciscans endorsed the return of JROTC to the city's schools by 53-47. It's good that this measure passed, but it is a sad commentary on how far our society has slipped that it was ever necessary and that so many people voted against it.

Bush and SCOTUS

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Tony Mauro has this long article in Legal Times on President Bush's legacy of Supreme Court appointments. A few excerpts:

A new law review study of the Roberts Court’s decisions concludes, in a play on Greenhouse’s 2007 assessment, that “conservatives should continue to yearn, and liberals should not fear.”
From the viewpoint of business litigants, says Sidley Austin’s Supreme Court expert Carter Phillips, “If the world had truly changed, employers would have won a lot more cases than they did last term.” Adds Mayer Brown’s Dan Himmelfarb: “Moderate conservatives being replaced by pragmatic conservatives hasn’t made much difference in most cases.”
*      *      *
“It seems clear to us,” says [Lee] Epstein [of NWU], “that reports of the sea-change generated by O’Connor’s departure and the onset of the Roberts era are overwrought at best and mistaken at worst.”

AEDPA Statute of Limitations, Again

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The U. S. Supreme Court heard argument today in the case of Jimenez v. Quarterman, No. 07-6984. This is another case on the AEDPA statute of limitations, which generally requires a federal habeas petition to be filed within one year of the completion of the direct appeal, with additional time for the period a state postconviction proceeding is pending.

Generally, courts say they are trying to interpret statutes consistently with the intent of the legislature. How do you do that in a quirky situation that, almost certainly, never occurred to the people who wrote the law? Also, why did the Supreme Court take a case this quirky?

Dirty Words

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The argument transcript in FCC v. Fox Television Stations, Inc., No. 07-582, is available here. This is the "dirty words on television" case. The word index in the back is more interesting than usual. "S-Word" is used 6 times, "F-Word" 15 times, and "F-bomb" once.

Update: Howard Bashman notes, "Apparently Carter G. Phillips's pretense for delivering a profanity-laden oral argument when this very same appeal was argued before the Second Circuit was simply a load of cr*p."

News Scan

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Oklahoma Court Sets Brown Execution Date: According to an AP article, on Monday the Oklahoma Court of Criminal Appeals set January 22 for the execution of Darwin Demond Brown, convicted for a 1995 slaying in Tulsa. Attorney General Drew Edmondson requested the execution date last month after the U.S. Supreme Court denied Brown's final appeal of his first-degree murder conviction and death sentence for the killing of Richard Kevin Yost during a 1995 robbery of a convenience store.

Supreme Court Reinstates Death Penalty For Deputy Killer Brannan: An article by a Macon staff writer reports that the Georgia Supreme Court has reinstated the death penalty for Andrew Howard Brannan, who was convicted of killing Laurens County deputy Kyle Dinkheller. In a unanimous decision, the high court reversed a Butts County judge’s ruling that threw out Brannan’s death sentence, and may have vacated Brannan’s conviction. Justice Hugh Thompson wrote "For the reasons set below, we reinstate Brannan’s death sentence and, to the extent that it is necessary to do so, we also reinstate his conviction."

Oakland Sued Over Flawed Search Warrants: Henry K. Lee, Chronicle staff writer, reports that the Oakland Police Department faces a second federal civil rights lawsuit filed by drug suspects who said their homes were searched under search warrants obtained from judges on false information. The complaint on behalf of two men whose East Oakland homes were searched earlier this year. They filed their complaint on Friday, two days after a class-action suit accused Oakland police of similar misconduct. The suit, which seeks unspecified damages, named the city of Oakland and Officers Karla Rush and Alan Leal.

Idaho Killer Duncan Gets 6 Additional Life Terms: AP writer Todd Dvorak reports that confessed child-killer Joseph Edward Duncan III received his final sentences Monday for the torture and slayings of an Idaho family, with a judge telling him that his cruel rampage "exceeds the bounds of human understanding." Six life prison terms in federal and state court were added to the death sentences a federal jury handed down in August. He is already serving three life sentences handed to him by a state judge in 2006 on kidnapping counts. Duncan was convicted for the 2005 kidnapping of 9-year-old Dylan Groene, and his sister Shasta, then 8. He tortured and sexually abused both children, eventually killing Dylan. He had targeted both children, and killed their older brother, as well as their mother and her fiance, so that he could kidnap Dylan and Shasta. Yesterday, the state court sentenced Duncan to three life terms for the murders. Shortly after that hearing, a U.S. District sentenced Duncan to three federal life terms, one for kidnapping Shasta, and one each for sexually abusing Shasta and her brother.

Blog Scan

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Justice Alito Comments On Life Outside the Cert Pool: Last Friday, Tony Mauro posted on a rare in-chambers interview with Justice Alito. Beginning with a candid look at Justice Alito's post-World Series excitement, Mauro eventually moves on to "Supreme Court related subjects," such as the Justice's decision to leave the cert pool this year. Mauro report's Alito "just wanted to see what it would be like," and is "very pleased," with his decision.

Academics Propose New Way To Grant Cert: At Dorf on the Law, Mike Dorf reports on a new academic proposal by emeritus Cornell Law Professor Roger Cramton and Duke Law Professor Paul Carrington. The two professors propose a restoration of "a good deal of the Supreme Court's mandatory appellate jurisdiction," with a new Supreme Court division, consisting of experienced federal appeals court judges deciding what cases the Court will decide. Supreme Court Justices would not lose all influence in the certioriari process, Cramton and Carrington propose allowing Justices to add to the cases selected by the appeals court judges. Dorf writes that the proposal could restore "more 'mundane' cases" to the Court's docket. Dorf also states that appeals court judges would likely have a better sense of what circuit splits need resolving than the Justices or their law clerks. Dorf also briefly discusses Cramton and Carrington's claim that their proposal would "rein in the tendency of the Supreme Court (and the emulating tendency of lower court judges) to act as a 'super-legislature.'" This is not the authors' first proposal for Supreme Court reform, in 2005 Cramton and Carrington had another idea for the Supreme Court: 18 year term limits for each Justice.

Is the Death Penalty "Dying a Slow Death"?:
Doug Berman at Sentencing Law and Policy seems to think so. Today, Berman posted that the "slow death" of the death penalty in America can be seen in "data showing the reduction of death penalty indictments brought by prosecutors and death sentences imposed by juries." He references this article from the Columbus Dispatch by John Futty, to support his argument. However, what is true in Franklin County, Ohio, may not be true for the rest of the country. In the Dispatch article Franklin County Prosecutor Ron O'Brien cited two reasons for the declining number of death-penalty indictments: a more critical review of the cases before presenting them to a grand jury, and a change in state law.

Errant Juror: Mike Scarcella at BLT has this post on the juror who left the Sen. Ted Stevens trial in D.C. due to the death of her father in California. Turns out Dad is alive and well, but the juror wanted to attend the Breeders' Cup race at Santa Anita.

News Scan


Court to Decide Convict's DNA Claim: As reported in Kent Scheidegger's post below, the Supreme Court has agreed to review a Ninth Circuit decision announcing that a convicted murderer has the right to testing of genetic evidence found at the crime scene. The Associated Press reports that William Osborne, convicted of a brutal rape and assault of an Anchorage prostitute in 1993, argues that he is entitled to have a condom, as well as hairs found at the scene tested.

Sex Offender Runs for Vermont Senate: Making the case that habitual criminals deserve a representative in the Vermont Senate, Larkin Forney is running on the "Justice for Vermonters" ticket. According to this AP story by John Curran, Forney, "who pleaded guilty to sexually assaulting a minor and has three driving under the influence convictions, said he's running to bring public attention to flaws in the criminal justice system." Commenting on his chances, Forney said, "I don't think I have that bad of a shot."

Ex-Con Kills Trick-or-Treater: A South Carolina man shot and killed a 12-year-old boy who was trick-or-treating, and wounded the child's brother and father according to this AP story by Meg Kinnard. Quentin Patrick, an ex-con with multiple drug convictions reportedly thought he was going to be robbed when he fired his AK-47 assault rifle through his front door at the children dressed in Halloween costumes. According to this CNN story, after the shooting police arrested a 19-year-old woman in Patrick's home for obstruction of justice as she tried to leave with $7,500.

Postconviction DNA

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The Supreme Court granted certiorari to review the Ninth Circuit's decision in the Alaska case of District Attorney’s Office for the Third Judicial District, et al. v. Osborne, No. 08-6, regarding a § 1983 suit to get postconviction access to DNA evidence. The question presented is after the jump. SCOTUSblog has the pleadings here. The Ninth Circuit opinion is by Judge Brunetti, one of the steadier hands on a frequently erratic ship.

SF Hookers Proposition Entire City

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Propositioning people is what prostitutes do for a living, of course, but not usually on this scale. The hookers of the City by the Bay want the people of San Francisco to de facto legalize their trade by approving Proposition K on tomorrow's ballot. Jesse McKinley has this story in Saturday's NYT. Doug Berman has this post at SL&P.

Now, a city or county (SF is both) ordinance can't repeal a state statute, so the measure "would forbid the city police from using any resources to investigate or prosecute people who engage in prostitution." Mayor Gavin Newsom and DA Kamala Harris, neither of whom is known for an excess of good sense, have enough to oppose this one.

The framers of California's Constitution were aware of the problem of local authorities failing to enforce state law. There is early California history of that in ... guess where. Article V § 13 provides, "Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violations of law of which the superior court shall have jurisdiction,* and in such cases the Attorney General shall have all the powers of a district attorney."

* At the time this provision was written, the criminal jurisdiction of the superior court was felonies. Misdemeanors went to municipal court. Now that our trial courts are consolidated and muni court is extinct, all crimes are within the jurisdiction of the superior court. Prostitution is a misdemeanor. (Penal Code § 653.26.) Pimping is a felony. (Penal Code § 266i.) Would the AG be duty bound to enforce both of these or only the latter? Would all the DAG's quit? Let's hope the measure is defeated and we don't have to find out.

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